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Proposed Civil Penalty Assessment <br />Seneca Coal Company / The Yoast Mine <br />NOV CV-2008-001 <br />May 29, 2008 <br />Materials reviewed: DRMS Inspection Report (4/22-23/08); Analytical Report, Grand Junction <br />Laboratories (4/28/08); DRMS NOV (5/2/08). Permittee did not submit comments. <br />History [Rule 5.04.5(3)(a)]: <br />No NOVs have been issued at this mine during the 12 months preceding the issuance of this NOV. <br />The History component is therefore proposed to be set at $0. <br />Seriousness [Rule 5.04.5(3)(b)]: <br />The Seriousness component of a proposed assessment may range from $0 to $1750. The amount <br />proposed depends upon whether the violation was one of performance requirements or of <br />administrative requirements. This NOV was written for a violation of performance requirements. <br />In the case of a violation of performance requirements, the amount to be assessed for Seriousness <br />depends upon (1) the probability of the occurrence of the event which a violated standard is <br />designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of <br />area and impact on the public or environment. <br />(1) It appears that improper surface water management, soil grading and seedbed preparation <br />practices resulted in events (failure of a topsoiled slope; reduction in sediment pond capacity; <br />exceedance of an effluent limit) that state law and MLRB regulations are designed to prevent. <br />(2) Duration is unknown, as certain violations remain unabated. Damage is actual. Public impact <br />appears small. Environmental impact (2.75 acre landslide; effluent exceedance) is moderate. <br />The Seriousness component of this assessment is therefore proposed to be set at $750. <br />Fault [Rule 5.04.5(3)(c)]: <br />The fault component of a proposed civil penalty assessment may range from $0 to $1500. <br />Assessments of "unavoidable" violations may range from $0 to $250. Assessments for violations <br />that were the result of "negligence" may range from $250 to $750. Assessments for violations that <br />resulted from "intentional conduct" may range from $750 to $1500. <br />The snowfall that may have contributed to these violations was unavoidable; however, the <br />improper surface water management, soil grading, and seedbed preparation practices that appear to <br />have led to the violations suggest a moderate degree of negligence on the part of the permittee. <br />The Fault component is therefore proposed to be set at $750. <br />Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: <br />The NOV has not been terminated at this time. <br />Good faith credit is therefore not proposed. <br />The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1500.